I should add that despite what people here are saying, the complexity of the wording is usually driven by legal requirements, not a desire to confuse people.
A key factor here should be the complexity of the agreement compared to the value of the transaction.
If you're buying a house, you're laying out at least six figures and can be reasonably expected to read the fine print or hire somebody to do it for you, even if it takes multiple hours or several hundred dollars. If you're buying a $1 app or using a free service, expecting the same thing is facially absurd.
Meanwhile if you're buying a $5 bottle of drain cleaner, it's ridiculous to expect someone to read 20 pages, but 20 words is not so unreasonable.
This also bodes ill for "we may update this agreement at any time" because that's imposing the burden of re-reading the agreement every time you change it, which is pretty unreasonable for anything where the other party isn't paying you (or getting paid by you) hundreds or thousands of dollars a year.
Trying to paraphrase: Transaction costs should be proportional to value of transaction.
Such inquiry will help daylight the value these hoarders derive from our data.
"Misuse of this product is dangerous and may cause death. Advil is not responsible for damages caused by misuse. Read and follow instructions on back of bottle"
That's a bit wordy but it indicates who is responsible (you) and what the gravity of the situation is (possible death). With that established, it means the onus is on the user to do more reading.
IANAL but I would like to belive something like that would satisfy all parties.
I emphatically disagree. In https://news.ycombinator.com/item?id=23566627 I take a sample from Apple's privacy policy that is written at a college reading level, and show how a rewrite can say more, in less words, while being readable at a grade 7 level.
This is merely an example illustrating that the vast majority of complexity in legal documents is driven by lawyers trying to look smart and not caring how impenetrable their prose is.
Furthermore I believe we are one well-argued case away from concluding that consumer contracts are not enforceable if the language is too complex. Consider. You only have an enforceable contract if there is a meeting of minds. Automated complexity tests show that most consumer contracts require college level reading level to understand. Per https://www.wyliecomm.com/2019/03/us-literacy-rate/ it turns out that only 2% of US adults read at that level. Therefore no contract can exist with anyone in the remaining 98% of the public.
For comparison, 13% of Americans speak Spanish. Which means that if you the average consumer contract would be understood by more Americans if it was rewritten into plain Spanish!
We all know that this is true and the current state of affairs is beyond absurd. I do not believe that this absurdity will survive indefinitely.
We already have automated tests of language complexity. There already are courts that have said that materials have to be available to consumers in a form that they can understand. For example see http://www.illinoiscourts.gov/Media/enews/2018/032118_plain_... for such a ruling in Illinois. To end the absurdity just takes one clear precedent saying that a contract is not enforceable if not understood, and cannot assume to have been understood by the average consumer if it requires a reading level of over X on test Y.
There are certainly terms of art that have well established meanings in certain fields but those should be used sparingly and don’t explain the massive amount of cruft in most contracts.
No one is well served by using deliberately arcane language.
Check out Ken Adams’ books and blogs[1] if you’d like to read more about this.
[1]: https://www.adamsdrafting.com/a-proponent-of-tested-contract...
Also, just having a lawyer read it isn't sufficient. They still need to communicate to you whatever information you need to be able to avoid violating the contract/law (if that is your intent).
EULAs all the way down...
Merely providing a bullet point summary of the contract (as I’ve seen some do, iirc GoG.com is one) is not enough—those bullet points would need to actually become the contract of record.
There is no reason the absence of contracts should lead to a breakdown of the tech industry. Tech companies are already protected by extremely generous copyright laws. Maybe they wouldn’t be able to collect everyone’s data all the time, but that’s a good thing.
I can’t speak as much to other industries because I know less about them. But I think e.g. landlords have a reasonable expectation that renters do read their contracts. I know I read my lease—that seems like a normal, reasonable thing to do. Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.
I also imagine it was much shorter than a typical software ToS/EULA.
> Reading a software ToS or Privacy Policy is, by contrast, exceptionally abnormal.
Part of the cause here is path dependence - we've been conditioned to ignore EULAs in the pre/early-Internet era, back when software walked and quacked like a product, not a service.
What else is in ToS’s that tech companies absolutely must be able to enforce?
If we want to get rid of these complicated 'agreements', we need to change the way our legal system operates.
No the Courts do not require complexity.
The famous example in law school being writing a agreement on a cocktail napkin being an enforceable contract.
The legal system may be in need of reforms, but in these instances the complexity and length of tech company TOS or PP is a direct result of these entities having an army of in-house and outside counsel looking after their own interests.
There is simply a power imbalance between FAANG companies and even their most legally savvy and educated user. This has nothing to do with the courts, and if you don't believe me, then reach out to one of the FAANG legal departments and tell them you want to use their service but need to negotiate the TOS/PP first.
Google "contract on a cocktail napkin", most of the top results will be for million dollar contracts on cocktail napkins...so maybe we just have a different opinion about "enforceable, but almost worthless."
IANAL, but I have never heard of a lawyer writing a contract on a napkin, or advising a client to do so; and they say verbal contracts are worth the paper they're written on.
Where did I or anyone say that is what lawyers advise. In fact I specifically said it is because of their army of lawyers tech companies have long and complex TOS and PP.
The point is TOS and PP are not complex because Courts require them, and the cocktail napkin contracts are examples (the pinnacle law school example) of how simple contracts can be while still being enforceable.
>Contracts are only important when there is a disagreement.
No, contracts are most important before the disagreement because they are what help avoid the disagreement. It would be very difficult to explain in this forum, but if you know what Summary Judgment is, breach of contract cases essentially never end in summary judgement, which is actually very counter intuitive because one would think with all breach of contract case should end in summary judgement...because the contract should speak for itself right? In other word one would think either the contract was performed/breached or it wasn't right? The thing is whether a contract was performed or breached is a question of fact for the fact finder; thus, contract cases never end at summary judgement and would always have to go to a finder of fact (judge or jury). You would probably have to spend a semester or 2 to fully grasp this concept and even then, it probably takes some actual practice of law with contract cases to fully grasp why contracts do not resolve contractual disagreements. The reality is once there is a dispute and you are seeking enforcement you would much rather have the cocktail napkin than a complex agreement, it will save you years of litigation and the cost of the same.
Yes that is generally what breach of contract cases are about...do you think a breach of contract case for extremely complex agreements are any different in nature?
Do you think there are more or less questions regarding interpretation, intent and meaning, with respect to complex agreements or simple agreements? In my experience litigating these matters the more complex an agreement the more protracted the litigation, in fact in some of the jurisdiction I practice there are specific divisions (complex civil litigation divisions) where those types of agreements generally end up.
Eg.
To use this service, you agree:
* You have no criminal convictions
* You have only 3 donkeys.
* No family member has ever owned a kazoo.
[ I agree ]
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the "Software"), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all
copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE
SOFTWARE.
So yeah, I'm going to go ahead and continue to believe that these EULA's are definitely not written with the user in mind.
Cases on behalf of Larry Ellison, however...
Is this a bug or a feature?
>as they are based on the idea that consumers can and should read lengthy, confusing documents.
The resolution of such lawsuits are based around the notion that consumers should be able to read such documentations. The law suits themselves are about a deeper issue of consent. I would see this action as nullifying the resolutions but not the problem. It is unjust, but to the consumers.
Contrary to what you think it is very possible to have short legal agreements. The GDPR data policy basic template is quite comprehensive and rather short for instance, although it could get better. We could also imagine some informative shortened version with icons and standardized information in the same way you have for food components or drug warnings, or crucially apps permissions nowadays, that would cover 95% of the legalese in the user agreements.
[1] https://www.abajournal.com/news/article/chief_justice_robert...
Under common law, there is no legal contract without a meeting of minds. There can be no meeting of minds without comprehension. Per studies of reading abilities, only 2% of Americans read at a college level. (See https://www.wyliecomm.com/2019/03/us-literacy-rate/ for a source.) Therefore such contracts should not be legally enforceable on the other 98% of Americans.
This reasoning applies only to contracts where members of the general public were expected to review the contract unassisted. By contrast in a business contract where both sides retained legal counsel, the complexity of the language is not prima facie evidence that the contract was unlikely to be understood.
If we decide that uninformed consent is still consent, we open a significant problem. And if we try to patch it by selectively applying the standard, we introduce arbitrariness which is an even larger problem.
The problem is, we have an extremely litigious society, and lawyers are asked to think through and address all of the risks. The lower the dollar amount, the lower the liability that a company can reasonably take for the transaction.
Do you want to have an account? Great, but we need to be clear about who is responsible for use of the account and its credentials. We also need to clarify when it can be suspended or terminated. Do you want to submit content? Cool, but we should confirm that what you submit is your own responsibility, and we need to add some language about ownership and licensing to avoid copyright and other IP issues. We should also confirm that certain types of activities are not OK (e.g., pornography, harassment). Do you want to provide feedback? Awesome, but you cannot sue if it is used. Do you want to use APIs? Sweet, but there are things you can and cannot do so you don't break or abuse our system. Are you paying for things? We need to be clear how that works. And through it all, we need to have key provisions about warranties and limitations of liability so the business is not on the hook for millions when the account is worth $10.
And all this is for a simple service. There are countless ways to add complexity to a service.
I still agree with a ton of points here about the dangers of one-sided agreements, limited options for services, complex legalese, etc. But I will say that this is a trickier issue than people seem to give it credit. It may be nonsensical to say that a consumer read and understood a contract, but it is also nonsensical to say that companies should risk bankruptcy for free or cheap services (unless we are OK with free or cheap services no longer existing).
Is that not the point of pursuing this train of thought? You aren't going to get businesses that have honest transactions with customers when such dishonest practices are allowed and generate enormous profits.
Imagine a service that is objectively good -- maybe a non-profit organization creates a free app to help connect homeless people with food, shelter, and potential employment opportunities. Businesses can then use the app to post jobs, etc. The non-profit runs on a shoe-string budget and certainly cannot afford to get caught up in litigation related to issues arising between users of the app (e.g., a homeless user upset that they did not get a job because a bug in the app lost their application, or a business upset because they were connected with a dishonest applicant). It seems fair that the non-profit should be able to limit its liability here.
You have a really good point about deceptive businesses and the importance of transparency and balancing the power between businesses and consumers. It is bad that shady businesses can be protected by contracts, but those contracts also protect good businesses. I honestly do not know what the solution is, but I personally think that eliminating contracts is less useful than strong consumer protection legislation like stronger privacy laws.
Certainly they should be liable for their service—of course they should be! You can’t expect a non-profit to do the government’s job, and certainly not without public (by which I mean via tax or capital) funding.
Regardless of non-profits, it’s a complete perversion of the very idea of “consent” to refer the users of the internet as consenting to any ads or data mining. There is no transaction to access the service, no way to view the true cost of the service or how much derived value your data has, no way to simply pay for the service with what the ad clients would have paid for the ad slots. In my book that’s completely dishonest. IMHO the onus is entirely on the company to explain and allow transparency into their monetization. If not, there’s nothing distinguishing what people might call “evil” behavior from what is apparently a competitive edge in the market, a “good” in America if I’ve ever heard it.
> Great, but we need to be clear about who is responsible for use of the account and its credentials. We also need to clarify when it can be suspended or terminated.
Do we, though? I purchased a membership at an ice skating rink last winter, which gave me unlimited entry and access to a private locker. I didn't sign a contract[1].
Is my skating membership any different than an online account, and if not, why are contracts only seen as necessary in the digital realm?
> we need to add some language about ownership and licensing to avoid copyright and other IP issues.
Isn't this stuff laid out in Section 503--the service provider isn't responsible for what their users upload, as long as they take action when they're informed of a violation, or some such? If that's US law, why does it need to get restated in the Tos?
> Do you want to provide feedback? Awesome, but you cannot sue if it is used.
I'm not sure what "if it is used" means, but if, say, someone goes ahead and reuses my review in promotional material without my knowing consent, I think I should be able to sue! That's exactly the problem with agreeing to a contract you don't realistically have the ability to read.
> Do you want to use APIs? Sweet, but there are things you can and cannot do so you don't break or abuse our system.
If someone is abusing your API by, e.g. making too many requests, you should cut them off--why do you need a contract for that?
If it's a private API for businesses, I actually think a ToS is fine. Professionals can reasonably be expected to read business-critical contracts.
---
As I acknowledged at the jump, these are probably dumb questions. But--and I'm trying to anticipate your answer here, so maybe it's off base to begin with--if the issue is that a Twitter spammer could sue Twitter for being banned, then we need broader legislation to address that, in a way that applies universally to all companies. Because, clearly you should be able to ban people who spam, contract or no contract.
Although, since restaurants can kick me out for holding up pornographic posters, and I can enter a restaurant without signing a contract... I have to wonder, again, why this is really necessary.
---
[1] I did need to sign a waver before stepping onto the rink, in which I acknowledged I might fall and injure myself. However, this wasn't related to my membership, and it was two paragraphs long.
In a perfect world, maybe we would not need contracts. Certainly not so many. For low risk and low volume agreements, like your skating rink membership, maybe a contract is not helpful. Although I would be interested to know what happens this winter if a pandemic means the skating rink shuts down. Should the rink reimburse customers who only got partial use out of their membership?
There are statutory protections for service providers, but they do not cover everything. For example, they do not give the service provider recourse against the user for their bad actions. They also do not address the service provider's IP, nor do they address licenses from the user to the service provider.
By "feedback," I meant suggestions for changes, like if you told Facebook about a new feature that you would like to see but then sued them if they built that feature. Or if you sent them an email they never saw but then they implemented the feature.
I guess it boils down to three big points: 1. Litigation is nasty and expensive, even if you are totally in the right. It is expensive to go before a judge or jury to say "This user did awful things, so I banned them and did not provide a refund. Here's what they did and why we kept their money." It is much cheaper to cut it off early with a motion to dismiss or motion for summary judgment by saying "This person violated Section 7 of the TOS, so I terminated in accordance with Section 8." 2. Lawyers are hired to look out for their clients' interests. It is their duty to their client, and they can be sued for malpractice if they do not. We generally agree that this is a good thing, I think. But it is a risk to the lawyer, not just the business, if the lawyer leaves a lot of issues open. 3. Your point about legislation is interesting. However, you could approach from the other direction as well, and have legislation that says certain liability cannot be limited or certain actions cannot be taken by businesses regardless of contract. This is what we do now and arguably could/should do more, and it has the added benefit of not making lawyers act out of their clients' interests.
I don't expect this to be very satisfying, but hopefully it at least puts this all in a bit of context.
Somebody is sure as hell trying and I'm honestly impressed by the commitment and content produced from their effort, behold: @crimeaday https://twitter.com/crimeaday
(I do agree it would be great for our laws to be more readable, but I don’t see how society could function with as low a limit on legislation as you’re suggesting.)
Eliminate all victimless crimes in their entirety. If no third party is harmed or unreasonably endangered, there shouldn't be any reason to fine or incarcerate someone. This basically eliminates all 'possession of' crimes that are so often misused by police to inflict all kinds of harm. (Good example being getting arrested for some marijuana in the car leading to car impound and ludicrous fees to get it released.)
That said, these laws are complex. [0]This is a felony scoresheet from Florida that shows how things get tallied up. Looking closely you can see the extreme impact of plea deals in sentencing, and the way multiple charges get added together.
Jury Nullification is one such example. Threats of life in prison (even if innocent) unless you plea down to a lesser charge is another.
Congress is not even required to read the bills they vote on
Only sharing because the Church has done extensive writing on legal theory and because the Church is transnational -- it's beyond the jurisdiction of any country and predates every country currently on earth.
None of us know which of our actions constitute a crime. Even worse, in many cases neither does anyone until someone goes to a court and a precedent is set. This is a terrible system.
Also, the concept conflicts with the idea of local government and basically requires a large central world government. I feel like thr idea of simplified laws is mostly an impractical pipe dream propagated by people who don't like that they can't dump poison into local rivers or sell people scams that harm them.
Here is how we can get a proper measure of the problem: how often are people harmed by complex contracts they signed but didn't understand, vs how often are people harmed by laws they didn't know existed? And how often were those people doing something meaningfully harmful to someone else and should have known better on basic moral grounds?
I wouldn't blame any particular company for not departing from this equilibrium we're in. But it makes a "meeting of the minds" so absurd it's a mockery of the ancient meaning of a contract.
Edit: I may be thinking only of terms of service; I don't remember how routine that term might be in privacy policies.
These are meant to be rhetorical questions but I am curious how people would answer.
The median US adult reads at a grade 5 level. That's a problem in and of itself. However when I paste Apple's privacy policy at https://www.apple.com/legal/privacy/en-ww/ into https://readabilityformulas.com/freetests/six-readability-fo... it comes out with a Flesch-Kincaid Grade Level of 14.4. There are a variety of readability measures at that site, and for this document they varied between grade 12 and college graduate.
It is therefore demonstrably impossible for the average American to read that policy. EVEN IF THEY WANTED TO.
Now another poster claims that this is because of what is legally required. That is nonsense. It is because nobody cares about making it readable. Let me demonstrate. Here is a sample paragraph from the document with a reading level of grade 13.4:
You may be asked to provide your personal information anytime you are in contact with Apple or an Apple affiliated company. Apple and its affiliates may share this personal information with each other and use it consistent with this Privacy Policy. They may also combine it with other information to provide and improve our products, services, content, and advertising. You are not required to provide the personal information that we have requested, but, if you chose not to do so, in many cases we will not be able to provide you with our products or services or respond to any queries you may have.
Here is a rewritten version that is significantly shorter, more readable (grade 7.3), and actually says more:
When you contact Apple or its affiliated companies, we may ask you questions about yourself. Examples that we commonly ask for include your name, age, address, and credit card number. You do not have to answer us. But if you don't, we may not be able to answer your questions or provide you with our services.
Your answers can be shared between Apple and its affiliates as long as we follow this Privacy Policy. We can also combine your answers with other data that we have. We do this to provide and improve our products, services, content, and advertising.
I could easily improve the readability more, but my point is made. The hardest part of the exercise was making the rewritten version long enough to get a readability score.
I think it would be very reasonable to pass a law saying that any consumer contract with a Flesch-Kincaid Grade Level of over grade 8 should not be enforceable. The reasoning being that there cannot have been a meeting of minds when few consumers are even able to understand the language which the contract is written in. And if there were such a law, I guarantee that lawyers would quickly learn how to put their thoughts in plain writing instead of legalese.
> When you contact Apple or its affiliated companies
carries different implications than the potential bidirectionality of
> anytime you are in contact with Apple or an Apple affiliated company
because the latter explicitly includes "when Apple contacts you".
"We may ask you questions about yourself" also implies a much wider range of latitude in the question topics than "provide your personal information".
The splitting of the "can combine your answers" and the "provide and improve" also makes me twitchy but I can't quite put my finger on why but it feels loophole-y.
(IMHO, obvs.!)
However my point remains. The complexity of the language was not required by what was actually said.
Perhaps a better way would be to legislate what privacy policies can contain, so that they are more like Creative Commons licenses.
As much as Google wants your data, there is no way they're going to actually make customers spend hours wading through dense legal speak before allowing them to use their service. No one would do it. They'd just go to duckduckgo.
Alternately, if getting access to your data is really so important to Google that they're willing to put users through so much pain, maybe users really do need to go through that pain, so they know what they're agreeing to.
This applies not just to Privacy Policies, but to just about every Terms of Service. You're telling me that when Apple updates the App Store's terms of use, they in good faith expect their customers to spend half their workday rereading the contract before clicking I Agree and downloading that new app? It's completely nonsensical!
Only high-level business software should be able to force its users to sign a contract, because that is the only circumstance in which it will be read.